The judge who ruled a former Klansman incompetent to stand trial in the Sixteenth Street Baptist Church bombing said Wednesday that Alabama's legal test of mental competence is deeply flawed.

"What we've got is unworkable," said Circuit Court Judge James Garrett, who found Monday that Bobby Frank Cherry's vascular dementia meant he could not stand trial in the 1963 bombing that killed four black girls. The decision prompted a 75-minute protest Wednesday by civil rights leaders and others outside the downtown Birmingham courthouse.

Garrett said he followed the law, but is working to change it. "I wish I could make popular decisions all the time but I can't," Garrett said. "You have to follow the law."

The Alabama Rules of Criminal Procedure do not say whether the burden of proving competency lies with the defense or prosecution. So, Garrett had to rely on a 1992 case that placed a tough burden of proof on prosecutors in mental competency cases.

In Lackey vs. State, the Alabama Court of Criminal Appeals said that once the defense presents evidence that a defendant is incompetent, the burden shifts to prosecutors, who then must prove the defendant is competent by "clear, convincing and unequivocal evidence."

Garrett said in his ruling Monday that Cherry's prosecutors failed to do that.

Garrett, who has been considering suggesting a rule change for several weeks, wants the state to adopt the federal standard for competence: "a preponderance of the evidence."

The judge is a member of the state's Rules of Criminal Procedure Committee, which suggests rules in criminal cases to the state Supreme Court. The committee meets in September and Garrett said he will present his suggestion then.

Garrett said he has been on the bench 21 years and has never had a competency hearing as extensive as Cherry's, during which two sets of doctors agreed the defendant has dementia, but gave contrasting opinions of his mental state.

A court-appointed psychiatrist found that the 71-year-old Cherry had suffered strokes and was not faking. Prosecution doctors said Cherry was malingering.

Garrett's order, however, doesn't close the book on Cherry. He ordered that Cherry undergo more testing at Tuscaloosa's Taylor Hardin Secure Medical Facility. An Aug. 10 hearing has been set to decide how the evaluation will be conducted.

Nearly 50 protesters outside the Mel Bailey Criminal Justice Center on Wednesday demonstrated as organizers criticized the competency standard, labeled the judicial system racist, and called on Garrett to change his ruling.

They carried signs, prayed and sang "We Shall Overcome," and chanted, "No justice. No peace." Adults and children marched in a circle, but their demonstration ended early because they did not have a permit.

One protester distributed fliers arguing that six mentally retarded black men have been prosecuted and executed in Alabama since 1989. The Rev. Abraham Woods, president of the local Southern Christian Leadership Conference, said if those men faced the bar of justice, so should Cherry.

"He needs to be carried into the court even if he is carried in on a stretcher," Woods said.

The Rev. Fred Shuttlesworth, instrumental in the city's civil rights struggle, attended Wednesday's protest. He said Cherry is "competent when he wants to be competent."

"I think the man should not get away scot-free, even this late," said the Cincinnati pastor. "He's already enjoyed freedom for years, even when he should have been in prison."

Cherry has been a longtime suspect in the bombing. Co-defendant Thomas E. Blanton was convicted in May, and Robert E. Chambliss was convicted in 1977. A fourth suspect is dead.

Woods said Garrett is a good man who is part of a bad system.

"You have to have the courage to do the right thing," Woods said. "You have the latitude to make another ruling. We're hopeful you'll make it."